Mental capacity: re-gaining capacity

The Mental Capacity Act 2005 confirms how we should approach assessing capacity to make decisions. Capacity is decision specific and can fluctuate and change over time. For example, a client may have capacity to sign their Will may not be able to manage their property and affairs more generally. I recently worked on a case with a man in his early 30s who had previously been judged not to have capacity to manage his own affairs, but who appeared to have re-gained capacity. The man has learning disabilities and is likely to need support throughout his adult life. It is unclear whether he will be able to live independently and he currently lives with his parents. His family asked me to meet with him and judge his capacity for myself so as to see if he could be empowered to make his own decisions. Crucially, I was also to consider who could act and make decisions for him throughout his lifetime if he were unable to make decisions for himself.

Background to the case

At aged 20 and being aware of his disabilities, my client had wanted to plan ahead and had been assessed to have capacity to appoint his own attorneys. At that time, he had signed an Enduring Power of Attorney (“EPA”) giving his parents legal authority to manage his affairs. An EPA is a document similar to a Lasting Power of Attorney (“LPA”) that was used prior to the introduction of LPAs on 1 October 2007. Since that date, it is no longer possible to create an EPA but EPAs created before that date are still legally valid. They continue to operate under the law in force prior to the Mental Capacity Act 2005. Under the old law, EPAs had to be registered with the Office of the Public Guardian (“OPG”) if the donor (my client in this case) ever lost capacity. This is different to the current law which requires all LPAs to be registered with the OPG before they can be used, regardless of the donor's capacity. Another key distinction between EPAs and LPAs is that EPAs did not allow people to appoint attorneys to make decisions about their health and welfare. Instead, attorneys acting under EPAs could only make decisions about property and affairs. At aged 26, my client was judged not to have capacity to manage his own affairs and his parents were advised to register his EPA with the Office of the Public Guardian so that they could continue to act as his attorneys. They approached me earlier this year because they felt that the position may now have changed and that their son should be re-assessed with a view to supporting him to live more independently. On meeting my client, I was immediately struck by his awareness of his own finances and his ability to weigh up information so as to make informed decisions. He seemed to satisfy the criteria set out in sections 2 and 3 Mental Capacity Act 2005. In my legal professional opinion, he had capacity to give me instructions and to revoke his old EPA and put in place new LPAs. I instructed his clinical psychologist to provide a medical opinion. The test for capacity is decision specific and there were different tests to be applied in this case.

Test: revoking the EPA

Once an EPA is registered, it can only be revoked with the confirmation of the Court of Protection (MCA Schedule 4, paragraph 15(1)(a). In the case of Re S (unreported - decision by Master Lush 13 March 1997), the Court of Protection held that to be satisfied that the donor understood the nature and effect of revocation of an EPA, the court would need evidence that the donor understood:

1. Who the attorneys were and how they were appointed (jointly/jointly and severally);
2. What authority the attorneys have;
3. Why it was necessary or expedient to revoke the power;
4. The unforeseeable consequences of revoking the power.

Although that case pre-dates the Mental Capacity Act 2005, it was applied in the later case of Re KJP [2016] EWCOP 6 which was decided after the Mental Capacity Act 2005 was fully implemented. Applying the tests outlined above and taken over two visits to my client, I assessed him as having the ability to be able revoke his EPA. This would however require him to sign a Deed of Revocation and to make an application to the Court to cancel registration of the document.

Tests: Putting in place new LPAs, the identity of my client's attorneys and how they should be appointed

Sections 2 and 3 of the Mental Capacity Act 2005 state that a person will lack capacity if:

• The person has an impairment or disturbance in the functioning of the mind or brain; and
• This impairment or disturbance prevents them from making specific decisions at the time the decision needs to be made. This is judged by looking at their ability to understand information, retain it, use it or weigh it in order to make a decision and to communicate that decision.

My client wanted to appoint attorneys not just for his property but also for his health and welfare. This was something that he had not been able to do when he signed his EPA at the age of 20. He wanted to appoint health and welfare attorneys so that should he become unwell, he would have members of his family with legal authority to manage his care. All in all, he also wanted to appoint members of the wider family, knowing that his parents may not be able to continue to act as his attorneys for the rest of his life.

Applying the test outlined in the Mental Capacity Act 2005 and over two visits, I considered that my client's learning disability did not prevent him from making the specific decisions in hand and that he was able to weigh the advantages and disadvantages of having new LPAs, and of appointing different people to be his attorneys. He was also able to communicate his decisions although he did need time to communicate effectively. Happily, my client's clinical psychologist agreed and confirmed that he had capacity: not just to revoke the EPA but also to put in place new LPAs.This meant that my client was able to appoint his parents again to be his attorneys for all decisions, but crucially also to appoint his sister and brother in law as substitute attorneys so that they could make decisions for him in the future if neither he nor his parents can make those decisions. This provided vital succession planning for my client. It gave him peace of mind as he now knows that there should be someone available in his family who can support his decision making throughout his life. My client's LPAs have now been registered with the Office of the Public Guardian and the Court has ordered that registration of his old EPA should be revoked.In all cases, we look to support our clients to empower them to take control of their lives as much as possible. We work to support people living with mental illness, degenerative disease or other vulnerabilities and give them the framework within which they can support themselves as much as possible.For further advice, please contact Louise Lewis or Ella Weaving. Alternatively, please call us on 01865 781 100.